Property v. Levitsky

• Decision Date: 15 October 2013
• Citation: 973 N.Y.S.2d 78,110 A.D.3d 503,2013 N.Y. Slip Op. 06648
• Court: New York Supreme Court — Appellate Division
• Parties: PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, Plaintiff–Respondent, v. Steven LEVITSKY, et al., Defendants–Appellants.

110 A.D.3d 503

973 N.Y.S.2d 78

2013 N.Y. Slip Op. 06648

PROPERTY & CASUALTY INSURANCE COMPANY OF HARTFORD, Plaintiff–Respondent,

v.Steven LEVITSKY, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Oct. 15, 2013.

The Wolford Law Firm LLP, Rochester (Michael R. Wolford of counsel), for appellants.

Wiggin and Dana LLP, New York (Jonathan M. Freiman of the bars of the States of Connecticut and Pennsylvania, admitted pro hac vice, of counsel), for respondent.

MAZZARELLI, J.P., ANDRIAS, FREEDMAN, GISCHE, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered February 11, 2013, which granted plaintiff insurer's motion for summary judgment declaring that it was not obligated to defend or indemnify defendants, unanimously affirmed with costs.

The insurance policy at issue contains three notice provisions: one requiring notice of “any” circumstances which “may” give rise to a claim; a second, separate notice provision if a claim does result; and a third provision related to notice allowing an insured to “lock in” coverage for a circumstance that occurs during the policy period, even if the resulting claim doesn't occur until after the policy period has ended. The notice of circumstance clause and the notice of claim clause, which are each independent conditions precedent to coverage, are unambiguous ( see Sirignano v. Chicago Ins. Co., 192 F.Supp. 2d 199, 202 [S.D.N.Y. 2000]; Bellefonte Ins. Co. v. Albert, P.C., 99 A.D.2d 947, 948, 472 N.Y.S.2d 635 [1st Dept.1984] ).

Defendants failed to comply with the notice of circumstance clause in a timely fashion. The motion court correctly found that defendants became aware of circumstances which may give rise to a claim in October 2006, either when the defendant in the underlying action answered the complaint, denying ownership of the premises, or six days later, when the statute of limitations expired and defendants had failed to join the owner of the premises on which their client was injured. Even if the answer was ambiguous, defendants were aware of circumstances which may give rise to a claim no later than December 2007, when Wilmorite, Inc.'s representative testified during a deposition that Great Eastern and not Wilmorite, Inc. was the owner of the premises.

Despite these circumstances, defendants did not notify plaintiff as to the potential claim until August 2008, after their client's case was dismissed. Defendants' argument that the notice of circumstance clause was triggered, at the earliest, when the firm or...